IN THE
Court of Appeals of Indiana
DeJuan Lamar Kelley, FILED
Jun 23 2026, 9:32 am
Appellant-Defendant
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
v.
State of Indiana,
Appellee-Plaintiff
June 23, 2026
Court of Appeals Case No.
25A-CR-1454
Appeal from the Monroe Circuit Court
The Honorable Valeri Haughton, Judge
Trial Court Cause No.
53C02-2006-MR-443
Opinion by Chief Judge Tavitas
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 1 of 26
Judge Foley concurs.
Judge Weissmann dissents with separate opinion.
Tavitas, Chief Judge.
Case Summary
[1] After his first jury trial for murder ended in a mistrial, DeJuan Kelley was
retried and convicted of reckless homicide, a Level 5 felony. Kelley appeals
and argues that his retrial constituted procedural double jeopardy and that the
trial court abused its discretion in sentencing him. We disagree and affirm.
Issues
[2] Kelley presents two issues, which we restate as:
I. Whether Kelley’s retrial constituted procedural double
jeopardy.
II. Whether the trial court abused its discretion in sentencing
him.
Facts
[3] Early in the morning of June 7, 2020, then-twenty-year-old Kelley stopped at a
gas station on North Walnut Street in Bloomington. There, he unexpectedly
encountered Emeriee Bryant, his ex-girlfriend. The relationship between Kelley
and Bryant had ended only months earlier.
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 2 of 26 [4] When Bryant arrived at the gas station that night, she was accompanied by
Michael Parker, Taleah Vaught, and Vaught’s cousin. Parker stayed in the
vehicle while Bryant, Vaught, and Vaught’s cousin went inside. While Bryant
was in the restroom, Vaught noticed Kelley and told him to leave. Kelley
declined. Bryant then left the restroom and saw Kelley, prompting a verbal
confrontation between them inside the store. At some point during the in-store
encounter, Kelley pulled a handgun from his waistband and pointed it at
Bryant. The confrontation soon spilled outside, where Kelley walked around
the rear of the vehicle in which Parker was located. He then fired two shots
from his firearm. One bullet shattered the driver’s side window and struck
Parker, who was still seated in the driver’s seat with the tinted windows up.
Parker was hit in the left side of his neck and later died at the hospital.
[5] Kelley was later apprehended and claimed that he aimed at the car door only to
scare Bryant and that he did not know Parker was inside due to the tinted car
windows and his poor eyesight. The State ultimately charged Kelley with
murder, attempted murder, and carrying a handgun without a license. On
November 20, 2023, the State filed a motion in limine seeking to prevent the
introduction of:
Any questions, testimony, comments, argument or evidence of
prior charged or uncharged criminal acts of any of the State’s
witnesses, including the alleged victims. See Ind. Evid. R. 401,
403, 404, and 405. Specific instances of conduct may be used to
prove character only when the person’s trait of character is an
essential element of a charge, claim, or defense. Ind. Evid. R.
405(b).
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 3 of 26
Appellant’s App. Vol. II p. 89. The trial court later granted the State’s motion
in limine as to this request.
[6] Kelley’s first trial began on February 2, 2024. After the jury was sworn, but
before opening statements, the trial court instructed the jury that counsel’s
opening statements “are not evidence and should be considered only as a
preview of what the attorneys expect the evidence will be.” Tr. Vol. II p. 17.
During opening statements, defense counsel referenced the testimony of
Vaught, who was listed as the State’s first witness, stating:
Taleah Vaught, a State’s witness here, may testify to some
purported statements that [Kelley] and others made[] [w]hile in
that store. But when you listen to Taleah Vaught, you are
listening to a person who seems to find herself in the center of
a lot of violent crime scenes. A person familiar to the police.
A person who is facing a level 5 felony. Right here in Monroe
County. Intimidation with a deadly weapon.
Id. at 24 (emphasis added).
[7] The State objected and moved for a mistrial, arguing that defense counsel’s
statements improperly portrayed Vaught as a criminal and, therefore,
constituted a reference to inadmissible character evidence. The State also
asserted that defense counsel’s remarks violated the trial court’s order in limine.
Defense counsel contended that a mistrial was unnecessary and that she was
simply previewing admissible evidence, given that defendants have a
constitutional right to cross-examine a State’s witness to show the witness’s
bias. Defense counsel also argued that the State’s motion in limine had not
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 4 of 26
specifically sought exclusion of Vaught’s pending charge and that the trial
court, therefore, had not preliminarily barred such evidence. Defense counsel
argued that, even if her comments were improper, a jury admonishment was
the appropriate remedy.
[8] Before recessing to research the issue, the trial court told the parties: “[I]f I say
it’s not permitted, I’m going to grant the mistrial . . . [b]ecause that’s just too
much.” Id. at 28. Upon returning, the trial court acknowledged that the crossexamination of Vaught about her pending charge would likely have been
permissible. But the trial court ruled that defense counsel’s disclosure of
Vaught’s pending charge during opening statements was different and that an
admonishment was not a viable cure for the purported misstep. More
importantly, the trial court found that defense counsel’s statements referring to
Vaught’s presence at violent crime scenes and familiarity to police were not
evidence of bias and, instead, were improper character attacks.
[9] Defense counsel again requested an admonishment, rather than a mistrial, and
noted that Vaught was confirmed as the State’s first witness and the jury had
already been instructed that opening statements are not evidence. The trial
court again refused the admonishment, stating, “I don’t think you can unwring
[sic] the bell.” Id. at 31. The trial court continued:
I think that it’s just impossible for the jury to go forward listening
to that opening and to those statements about Ms. Vaught
without, and I could admonish, but quite frankly I think even if it
didn’t come up, I get questions from [the] jury about what were
the crimes, what was this, what was that. I just do not think that
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 5 of 26
I can remedy that, those statements and it sounded to the Court
like an attempt to defame her before she was testifying, before
she was subject to direct or cross-examination.
Id. The trial court found a mistrial was manifestly necessary under the
circumstances. The trial court, therefore, granted a mistrial and dismissed the
jury.
[10] Kelley later moved to dismiss the charges, arguing that there was no manifest
necessity for the mistrial and that trying him again would constitute procedural
double jeopardy. The trial court denied the motion, again finding that manifest
necessity had existed and that Kelley’s counsel bore responsibility for causing
the mistrial. 1
[11] Kelley’s second trial on the same charges commenced in March 2025. The jury
acquitted Kelley of murder and attempted murder. The jury, however, found
him guilty of the lesser included offense of reckless homicide, a Level 5 felony,
as well as carrying a handgun without a license, a Class A misdemeanor. The
trial court sentenced Kelley to an aggregate of six years. Kelley now appeals.
1
Kelley requested that the trial court certify its order for interlocutory appeal, which the trial court granted.
But the motions panel of this Court declined to accept interlocutory jurisdiction.
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 6 of 26
Discussion and Decision
I. Kelley’s retrial did not constitute procedural double jeopardy.
[12] Kelley first claims that the trial court abused its discretion by concluding that
there was a manifest necessity for a mistrial during the first jury trial. Kelley,
therefore, argues that his second trial constituted impermissible procedural
double jeopardy. We disagree.
[13] “The Double Jeopardy Clause of the Fifth Amendment, applicable to the states
through the Fourteenth Amendment, provides that ‘[n]o person shall . . . be
subject for the same offence to be twice put in jeopardy of life or limb.’” Brock
v. State, 955 N.E.2d 195, 199 (Ind. 2011) (quoting U.S. Const. amend. V).
Jeopardy attaches when the jury is impaneled and sworn. Id. (citing Downum v.
United States, 372 U.S. 734, 736-37 (1963); Jackson v. State, 925 N.E.2d 369, 373
(Ind. 2010)). But the fact that jeopardy has attached “merely ‘begins, rather
than ends, the inquiry as to whether the Double Jeopardy Clause’ barred [a]
second trial.” Id. (quoting Illinois v. Somerville, 410 U.S. 458, 467 (1973)).
[14] The Brock Court further explained:
The constitutional protection against double jeopardy has several
features. In this case, because the first trial ended in a mistrial,
we deal with the defendant’s “valued right to have his trial
completed by a particular tribunal,” Wade v. Hunter, 336 U.S.
684, 689 (1949), which means that the defendant has a right to
have his trial completed by the first jury impaneled to try him,
Oregon v. Kennedy, 456 U.S. 667, 673 (1982). Valued though this
right may be, it “must in some instances be subordinated to the
public’s interest in fair trials designed to end in just judgments.”
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 7 of 26
Wade, 336 U.S. at 689; see also United States v. Jorn, 400 U.S. 470,
483-84 (1971) (plurality opinion). Accordingly, unlike a trial that
has ended with a judgment on the merits, declaration of a
mistrial does not automatically bar retrial. Arizona v. Washington,
434 U.S. 497, 505 (1978).
955 N.E.2d at 199. If a trial court declares a mistrial over the defendant’s
objection, the defendant may be retried only if the mistrial was justified by a
“manifest necessity,” or that “the ends of public justice would otherwise be
defeated.” Id. (citations omitted). 2
[15] Manifest necessity “does not mean that a mistrial had to be necessary in a strict,
literal sense.” Eichelburger v. State, 251 N.E.3d 1106, 1113 (Ind. Ct. App. 2025)
(citations and internal quotation marks omitted); accord Englehardt v. State, 218
N.E.3d 606, 611 (Ind. Ct. App. 2023). “Nor is the trial court required to state
that it considered alternative solutions but found them [to be] inadequate.”
Eichelburger, 251 N.E.3d at 1113. Instead, there need only be a “high degree” of
necessity to conclude that a mistrial was appropriate. Id. Importantly, we must
accord “the highest degree of respect” to the trial court’s determination that the
jury may have been affected by an improper comment. Id. (emphasis added).
Although a mistrial is an “extreme remedy,” we still review the trial court’s
grant of a mistrial only for an abuse of discretion. Id. A court should consider
2
If, however, the defendant consents to the mistrial, then retrial is permitted as a matter of course, unless the
defendant can prove that the government intentionally goaded him or her into consenting to the mistrial “to
subvert the protections afforded by the Double Jeopardy Clause.” Id. (quoting Kennedy, 456 U.S. at 676).
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 8 of 26
a variety of factors that “may bear on the need for a mistrial.” Id. (citing
Jackson, 925 N.E.2d at 373).
A. The mistrial was attributable entirely to the defense.
[16] The first of these factors is the extent to which the need for the mistrial is
attributable to the State, which is a “significant factor.” Id. If the reason for the
mistrial is attributable to the State, it must demonstrate a much higher degree of
necessity for the mistrial. Id. In contrast, “‘[a] defendant who creates his own
cause for mistrial presents no error.’” Vaughn v. State, 971 N.E.2d 63, 70 (Ind.
2012) (quoting Avant v. State, 528 N.E.2d 74, 78 (Ind. 1988)).
[17] Here, the mistrial was not attributable to the State and was instead entirely
attributable to the defense. Defense counsel’s attack on Vaught’s character
occurred after the trial court had granted a motion in limine prohibiting the
introduction of improper character evidence. Defense counsel’s statements
characterizing Vaught as someone who “seems to find herself in the center of a
lot of violent crime scenes” and as “a person familiar to the police” were
improper character evidence and in direct violation of the court’s order in
limine. Tr. Vol. II p. 24. Indeed, defense counsel acknowledged on the record
that she had “researched this thoroughly beforehand” precisely because she
“anticipated this objection.” Id. at 33.
[18] Kelley contends that his defense counsel could properly reference Vaught’s
pending criminal charge during opening statements as anticipated evidence of
bias, citing Smith v. State, 721 N.E.2d 213 (Ind. 1999). We are not persuaded.
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 9 of 26
Evidence Rule 609 “draws a bright line at conviction,” and, accordingly, a
witness generally may not be impeached by specific acts of misconduct that
have not resulted in criminal convictions. Corbett v. State, 179 N.E.3d 475, 491
(Ind. Ct. App. 2021) (citations and internal quotation marks omitted). A
witness’s pending criminal charges, however, may be evidence of bias, and a
defendant has a constitutional right to explore those charges on crossexamination, if there is evidence linking the charges to the witness’s bias.
Smith, 721 N.E.2d at 219-20; Tolliver v. State, 922 N.E.2d 1272, 1286 (Ind. Ct.
App. 2010). Thus, Smith addressed the constitutional right to cross-examine a
witness about pending charges that may reveal bias; Smith did not address
opening statements.
[19] Here, defense counsel made her statements before the presentation of any
evidence and before the pending charge had been linked to any bias. The trial
court correctly recognized this distinction and acknowledged that defense
counsel could likely have inquired about Vaught’s pending charge on crossexamination but could not mention the pending charge in her opening
statement.
[20] Moreover, even if Smith could be read to permit disclosure of the pending
charge during opening statements, we cannot ignore defense counsel’s
statements that Vaught “seems to find herself in the center of a lot of violent
crime scenes” and is “a person familiar to the police.” Tr. Vol. II p. 24. Those
statements were pure propensity evidence with little relationship to Vaught’s
potential bias, and they were the central basis for the trial court’s ruling. See
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 10 of 26
Ind. Evidence Rule 404(b) (generally prohibiting evidence of prior misconduct
“to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character”).
[21] Kelley also relies on Eichelburger and Englehardt, but in neither of those cases did
defense counsel violate an order in limine during opening statements. In
Eichelburger, the pretrial order did not prohibit the questions that defense
counsel asked, and the jury had already heard about the matter from prior
testimony. 251 N.E.3d at 1115. And in Englehardt, the improper statement
came from a defense witness, a circumstance defense counsel could not fully
control. 218 N.E.3d at 611. Here, in contrast, the trial court specifically found
that defense counsel introduced improper character evidence after being placed
on notice not to do so by the court’s order in limine. Thus, the first factor
weighs heavily in favor of the necessity of a mistrial.
B. The trial court adequately considered alternatives to a mistrial.
[22] The next factor to consider is “the necessity of the mistrial in light of the steps
taken by the trial court to avoid the mistrial.” Eichelburger, 251 N.E.3d at 1113.
“This factor encompasses considerations such as whether the trial court
provided counsel the opportunity to be heard, considered alternatives, and
made its decision after adequate reflection.” Id. Here, the trial court conducted
a hearing regarding the State’s motion for a mistrial and heard arguments from
both parties; it then recessed to research the law; it reviewed the recording of
defense counsel’s opening statements; and it made specific findings and
explained its reasons for granting the mistrial.
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 11 of 26 [23] Even though the trial court was not required to explicitly state on the record
that it had considered less-severe alternatives before declaring a mistrial, see
Englehardt, 218 N.E.3d at 610, the trial court explicitly acknowledged that an
admonishment was an option, but found it to be an insufficient remedy. An
admonishment directing the jury to disregard defense counsel’s characterization
of Vaught would have also required the trial court to repeat, and risk
reinforcing, the improper statements. The trial court was in the best position to
determine whether an admonishment would be sufficient, and we will not
second-guess the trial court’s decision on this matter.
[24] Kelley also argues that the trial court effectively foreclosed consideration of any
alternatives to a mistrial before hearing the arguments of the parties. Kelley
refers to the trial court’s pre-recess statement that “if I say it’s not permitted, I’m
going to grant the mistrial . . . because that’s just too much.” Tr. Vol. II p. 28.
We do not read that statement as a prejudgment. The trial court made it clear
that the ruling was conditional, i.e., it depended on a legal conclusion the court
had not yet reached. The trial court then recessed for nearly an hour to research
the applicable law, reviewed the recording of defense counsel’s opening
statement, resumed argument, heard further argument from both sides, and
issued a ruling explaining why admonishment was insufficient. That process
mirrors what this Court found adequate in Pavey, 764 N.E.2d at 699-700, where
the trial court also gave both parties a full opportunity to be heard before
granting a mistrial.
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 12 of 26 [25] Kelley argues that, because the jury had been instructed that statements of
counsel are not evidence, the harm done by defense counsel’s statements was
minimal. But this argument would apply in every case where improper
statements are made by counsel, making a mistrial never truly necessary. The
preliminary jury instruction did not eliminate the prejudice created by defense
counsel’s improper statements, and the trial court, not this Court, was in the
best position to assess whether an admonishment would adequately cure the
harm. In short, the second factor also weighs in favor of the necessity of a
mistrial.
C. The burden of the mistrial was lessened due to its timing.
[26] The third factor we consider is the burden imposed by a mistrial. Eichelburger,
251 N.E.3d at 1113. In considering this factor, we focus on “the values
underlying the protection against double jeopardy—the burden on the accused,
the associated stigmatization as one accused, and the increased risk of wrongful
conviction.” Id. (citation and internal quotation marks omitted). These values
must be weighed against allowing the State “one complete opportunity for a
conviction.” Id. at 1113-14. These considerations are not given as much
weight “when the trial is terminated shortly after jeopardy has attached as
opposed to at a later stage in the trial.” Id. at 1114.
[27] Here, the trial court declared a mistrial shortly after jeopardy attached, during
defense counsel’s opening statement, before any witness testified. The burden
imposed on Kelley by the mistrial was, therefore, less substantial than it would
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 13 of 26
have been had the trial proceeded further. See id. This factor also weighs in
favor of the necessity of a mistrial.
D. The factors all weigh in favor of the necessity of the mistrial.
[28] In sum, it was defense counsel who caused the need for the mistrial, the trial
court adequately considered the alternatives to a mistrial, and the burden of the
mistrial was minimized by it having been declared very early in the
proceedings. Considering all of these factors, we conclude that the trial court
did not abuse its discretion in concluding that there was a manifest necessity for
the mistrial.
[29] We find the present case to be similar to Pavey, 764 N.E.2d 692. In that case,
defense counsel claimed during opening statements that the State’s key witness,
who had entered into a plea agreement requiring him to testify truthfully, had
been “bought and paid for” and had to “please the Prosecutor” or risk having
his plea agreement voided. Id. at 697. After the State moved for a mistrial, the
trial court listened to a recording of the remarks, heard argument from both
sides, and granted a mistrial. On appeal, Pavey argued that his retrial was
barred by double jeopardy. We disagreed and held that there was a manifest
necessity for the mistrial and that retrial was, accordingly, not barred. Id. at
701. Our holding relied heavily on the fact that it was the defense, not the
State, that caused the issue requiring the mistrial. Id.
[30] Although the misconduct at issue here may not have risen to the level of that in
Pavey, we reach the same conclusion. It was defense counsel’s violation of the
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 14 of 26
trial court’s order in limine that caused the need for the mistrial, and the trial
court was in the best position to determine whether an admonishment would
suffice. 3 We, therefore, conclude that the trial court did not abuse its discretion
by finding that there was a manifest necessity for declaring a mistrial. Kelley’s
retrial, therefore, did not subject him to procedural double jeopardy. 4
II. Kelley’s sentencing claims are moot.
[31] Kelley also claims that the trial court abused its discretion in sentencing him.
The trial court sentenced Kelley to an aggregate term of 2,184 days. The trial
court also found that Kelley had served 1,752 actual days and earned 220 days
of good-time credit. This left a balance of 212 days for Kelley to serve, and no
portion of Kelley’s sentence was suspended. Kelley was sentenced on May 15,
2025, and more than 212 days have passed. As a result, Kelley has already
served his sentence. 5 Because we cannot grant any relief to Kelley on his
3
The dissent references our abuse-of-discretion standard but applies what amounts to de novo review. The
question before us is not whether we would have found an admonishment sufficient, but whether the trial
court’s conclusion that an admonishment would be insufficient was clearly against the logic and effect of the
facts and circumstances before the court. The dissent appears to require the trial court to explain why an
admonishment “would . . . fail,” infra, slip op. at 19, and, finding no such explanation, concludes for itself
that one would have sufficed. But that assessment was for the trial court, not us, to make.
4
Kelley also argues that his retrial violated the prohibitions against double jeopardy contained in Article 1,
Section 14 of the Indiana Constitution and the double jeopardy statute, Ind. Code § 35-41-4-3(a)(2)(iv), which
bars retrial after a jury is sworn unless “prejudicial conduct . . . made it impossible to proceed with the trial
without injustice to either the defendant or the state.” But Kelley admits that our courts apply an “identical
analysis” under these provisions and the Fifth Amendment. Appellant’s Br. p. 26. Thus, our conclusion that
Kelley was not subject to double jeopardy under the Fifth Amendment also resolves his claims based on state
law.
5
The Department of Correction’s offender locator website indicates that Kelley was discharged on May 23,
2026. https://offenderlocator.idoc.in.gov/idoc-ofs-1.0.2/ofs?lname=kelley&fname=dejuan&search1.x
=0&search1.y=0 [https://perma.cc/75Q8-C3E3] (last visited June 8, 2026).
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 15 of 26
sentencing claims, they are moot. See Lee v. State, 816 N.E.2d 35, 40 n.2 (Ind.
2004) (holding that, once a sentence has been served, “‘the issue of the validity
of the sentence is rendered moot’”) (quoting Irwin v. State, 744 N.E.2d 565, 568
(Ind. Ct. App. 2001)). 6
Conclusion
[32] The trial court did not abuse its discretion in finding that there was a manifest
necessity for declaring a mistrial at the beginning of Kelley’s first jury trial.
Kelley’s retrial, therefore, did not subject him to procedural double jeopardy.
And Kelley’s challenge to his sentence is moot. Accordingly, we affirm the trial
court’s judgment.
[33] Affirmed.
Foley, J., concurs.
Weissmann, J., dissents with separate opinion.
ATTORNEY FOR APPELLANT
Rachel M. Rogers
Monroe County Public Defender
Bloomington, Indiana
6
Kelley argues in a footnote in his Appellant’s Brief that we should nevertheless address his sentencing claim
because it presents “a novel issue . . . likely to affect other similarly situated Defendants.” Appellant’s Br. p.
26 n.18. We disagree. This single-sentence claim is insufficient to invoke the public-importance exception to
the mootness doctrine. See Ind. Appellate Rule 46(A)(8)(a) (requiring arguments to be supported by cogent
reasoning). And even on its merits, whether a trial court appropriately deprived a particular defendant of
good-time credit based on that defendant’s specific disciplinary record is a fact-sensitive sentencing issue that
does not present a question of law of broad public importance that would warrant our review despite the
claim being moot.
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 16 of 26
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Tyler Banks
Deputy Attorney General
Indianapolis, Indiana
Weissmann, Judge, dissenting.
[34] Trials are human, messy, and imperfect. The Constitution does not require
otherwise. It guarantees a fair trial, not a flawless one. McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 553 (1984) (quoting Brown v. United States, 411
U.S. 223, 231-32 (1973)). Trials also are costly—not just financially, but in time,
service, and public trust. See id.
[35] Given these high stakes, once a jury is sworn and a mistrial is sought by the
State over the objection of the defendant, the court may not declare a mistrial
unless manifest necessity demands it. Arizona v. Washington, 434 U.S. 497, 505
(1978); Ind. Code § 35-41-4-3(a)(2)(iv) 7. This historically high bar is reached
only when prejudicial conduct has made it truly impossible to proceed without
7
The relevant portion of Indiana Code § 35-41-4-3(a) specifies that “[a] prosecution is barred if there was a
former prosecution of the defendant based on the same facts and for commission of the same offense and if . .
. the former prosecution was terminated after the jury was impaneled and sworn . . . unless . . . prejudicial
conduct, in or outside the courtroom, made it impossible to proceed with the trial without injustice to either
the defendant or the state . . . .”
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 17 of 26
injustice to either party. Washington, 434 U.S. at 505-06; Tyson v. State, 543
N.E.2d 415, 419 (Ind. Ct. App. 1989) (“Indiana recognizes the manifest
necessity doctrine” when determining whether a retrial prompted by a mistrial
is barred by double jeopardy); Ind. Code § 35-41-4-3(a)(2)(iv).
[36] Today, the majority lowers that bar to a level I find troubling. Under its
reasoning, a brief, overreaching but easily curable comment during the
defense’s opening statement justifies discharging a sworn jury over the
defendant’s objection. The damage caused by this lessened standard extends
beyond Kelley, who, due partly to the delays caused by the mistrial, has already
fully served his sentence for his offenses. Today’s decision causes broader
damage by transforming mistrials from a recognized remedy of last resort to a
presumably appropriate first response when inevitable trial mistakes are made.
See Lucio v. State, 907 N.E.2d 1008, 1010-11 (Ind. 2009) (“The remedy of
mistrial is ‘extreme,’ strong medicine that should be prescribed only when ‘no
other action can be expected to remedy the situation’ at the trial level”)
(citations omitted).
[37] Here, counsel’s remarks concerned one of the State’s witnesses—Vaught—
whom defense counsel described as facing a pending felony charge, as “familiar
to the police,” and as being “in the center of a lot of violent crime scenes.” Tr.
Vol. II, p. 24. Those remarks came before any evidence was admitted and after
the jury had been instructed that opening statements were not evidence. And
while I agree that some of the defense comments were improper, the harm they
generated could have been effectively offset by a direct admonishment, which is
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 18 of 26
perfectly suited for this purpose. The fundamental purpose of an admonishment
is to neutralize the prejudicial effects of trial errors by instructing jurors to
disregard inadmissible evidence and not rely on it when making their decisions.
Here, in my view, the trial court treated a curable flaw as an incurable crisis and
erred in granting a mistrial.
I. An Admonishment Was the Proper Remedy
[38] The trial court rejected an admonishment for two reasons: the bell could not be
unrung and jurors might later have questions about Vaught. The majority calls
that “adequate[] consider[ation]” of alternatives to mistrial. Maj. op., ¶28. But
neither of the court’s reasons answers the question that manifest necessity
requires: why would an admonishment fail? See Dillard v. State, 755 N.E.2d
1085, 1090 (Ind. 2001) (“When a trial judge admonishes the jury to disregard
an event that occurred at trial, the admonishment is usually an adequate
curative measure, and a mistrial is not necessary”).
[39] The majority supplies its own answer to this critical question. It determines that
an admonishment would have required the court to “repeat, and risk
reinforcing,” the improper remarks and therefore would have been ineffective.
Maj. op., ¶23. But “‘[r]eversible error is seldom found when the trial court has
admonished the jury to disregard a statement made during the proceedings.’”
Owens v. State, 937 N.E.2d 880, 895 (Ind. Ct. App. 2010). This is so because
appellate courts presume that a timely and accurate admonishment by the trial
court will cure any harm and that jurors follow the court’s instructions in
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 19 of 26
reaching their verdicts. Jones v. State, 101 N.E.3d 249, 258 (Ind. Ct. App. 2018)
(quoting Bradley v. State, 649 N.E.2d 100, 108 (Ind. 1995)).
[40] In any case, the majority’s concern that an admonishment would repeat and
reinforce the improper remarks is not a categorical bar to a mistrial but, rather,
a factor to be considered by the trial court in exercising its discretion and
shaping a particular remedy for the trial error. See Norton v. State, 785 N.E.2d
625, 628-29 (Ind. Ct. App. 2003) (affirming denial of mistrial without
admonishment where trial court agreed with the requesting party that the
admonishment would only aggravate the harm). Every admonishment risks
reminding jurors of the matter they must disregard. If that risk alone makes an
admonishment inadequate, then admonishments are inadequate in every case.
[41] The trial court’s stated reasons do not show an admonishment was inadequate.
Its “unring the bell” explanation answers the wrong question. Jurors obviously
can never unhear improper comments, stricken testimony, or withdrawn
questions. But the purpose of an admonishment is not to erase what jurors
heard. It is to direct what they may consider in reaching a verdict. Jurors’ mere
exposure to an improper comment from counsel does not render an
admonishment or curative instruction inefficacious. See, e.g., Wright v. State, 690
N.E.2d 1098, 1112 (Ind. 1997) (ruling that mistrial was not required when the
prosecutor’s improper statement was fleeting and the trial court instructed the
jury that the prosecutor’s statement was not evidence), abrogated on other grounds
by Konkle v. State, 253 N.E.3d 1068, 1082 (Ind. 2025).
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 20 of 26 [42] Nor does possible juror curiosity justify a mistrial. The court worried jurors
might later ask questions about Vaught. But anyone who has served on a jury
knows that jurors often wonder about matters they are told not to consider.
Instructions and admonishments erect effective boundaries, separating that
which jurors may consider in reaching a verdict from that which they may not.
See, e.g., Ind. Evidence Rule 105 (“If the court admits evidence that is
admissible against a party or for a purpose—but not against another party or for
another purpose—the court, on timely request, must restrict the evidence to its
proper scope and instruct the jury accordingly”). And juries are presumed to
follow a court’s instructions and admonishments. Weisheit v. State, 109 N.E.3d
978, 989 (Ind. 2018) (instructions); Kocielko v. State, 938 N.E.2d 243, 252 (Ind.
Ct. App. 2010) (admonishments).
[43] The trial court gave no reason why this jury—freshly instructed that opening
statements were not evidence—could not follow a targeted admonishment to
disregard improper comments about one witness. If this jury could not do that,
it is hard to see how any jury could perform the basic work we ask of jurors
every day: follow limiting instructions, disregard stricken testimony, ignore
withdrawn questions, and decide cases only on admitted evidence.
II. Fault Is Not Necessity
[44] The majority places great weight on the fact that the mistrial was “entirely
attributable entirely to the defense.” Maj. op., ¶17. But fault does not
automatically equate to manifest necessity. See, e.g., Hall v. State, 722 N.E.2d
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 21 of 26
1280, 1283 (Ind. Ct. App. 2000) (finding no manifest necessity for a mistrial in
bench trial after defense counsel improperly asked State’s witness about
pending drug charge and trial judge, after granting the mistrial, stated he could
“forget what I heard”). As Hall establishes, a curable error remains curable even
when the defense caused it.
[45] The majority’s prejudice analysis also overstates the record. Counsel’s reference
to Vaught’s pending felony charge concerned evidence the trial court
acknowledged Kelley likely could have explored on cross-examination. And
Vaught was the State’s first witness, present at the courthouse and about to
testify. The majority never explains why evidence likely admissible from the
witness stand became incurably prejudicial because counsel mentioned it
shortly before the witness took the stand.
[46] That leaves two improper comments: (1) Vaught “seems to find herself in the
center of a lot of violent crime scenes”; and (2) Vaught was “[a] person familiar
to the police.” Tr. Vol. II, p. 24. These statements may have crossed a line. But
they were brief, isolated, and directed at one witness’s character. They did not
touch the State’s evidence, attack the integrity of the prosecution, or threaten
the fairness of the trial in any way an admonishment could not cure. A jury told
minutes earlier that openings are not evidence did not need to be discharged
over those two flawed sentences. See Wright, 690 N.E.2d at 1112 (affirming
denial of mistrial where the prosecutor’s improper statement was “fleeting” and
the court instructed the jury that the prosecutor’s statement was not evidence).
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 22 of 26 [47] Nor does Pavey v. State, 764 N.E.2d 692 (Ind. Ct. App. 2002), compel that
result. There, defense counsel told the jury the State’s key witness had been
“bought and paid for” and had to please the prosecutor or lose his plea deal. Id.
at 698. That was a direct attack on the integrity of the State. By contrast, this
case involved two vague comments about one of several witnesses to the
shooting, plus a reference to impeachment evidence the trial court
acknowledged could likely be explored on cross-examination.
[48] The majority concedes the misconduct here “may not have risen to the level of
that in Pavey” but reaches the same result. Maj. op., ¶30. But in treating this
case like Pavey, the majority shifts the inquiry from whether counsel’s remarks
were too toxic for an admonishment to cure to whether the defense caused the
problem. That is too low a bar for manifest necessity. See Hall, 722 N.E.2d at
1283 (no manifest necessity for a mistrial for defense counsel’s improper
questioning of State’s witness during bench trial when judge stated he could
disregard it).
III. The Mistrial Burden
[49] Moreover, the majority’s timing analysis does not fully account for what retrial
costs a defendant. Underlying the Double Jeopardy Clause of the Fifth
Amendment is the belief that “‘the State . . . should not be allowed to make
repeated attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity, as well as enhancing the
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 23 of 26
possibility that even though innocent he may be found guilty.’” Green v. United
States, 355 U.S. 184, 187-88 (1957). “Where, as here, a mistrial has been
declared, the defendant’s ‘valued right to have his trial completed by a
particular tribunal’ is also implicated.” United States v. Dinitz, 424 U.S. 600, 606
(1976) (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). Retrials also foist
additional financial burdens on the counties in which they occur.
[50] These burdens collectively are significant enough that both federal and state
constitutions forbid a second trial absent manifest necessity. Washington, 434
U.S. at 505 (“[A]s a general rule, the prosecutor is entitled to one, and only one,
opportunity to require an accused to stand trial”); Hall, 722 N.E.2d at 1282-83;
U.S. Const. amend. V; Ind. Const. art. 1, § 14. Reviewing courts are to consider
these burdens when evaluating the propriety of the trial court’s ruling on the
mistrial. Englehardt v. State, 218 N.E.3d 606, 611 (Ind. Ct. App. 2023) (“The
relevant focus is upon ‘the values underlying the protection against double
jeopardy—the burden on the accused, the associated stigmatization as one
accused, and the increased risk of wrongful conviction’”) (quoting Jackson v.
State, 925 N.E.2d 369, 374 (Ind. 2010)).
[51] Kelley had already carried those burdens for nearly four years before his first
jury was sworn. The mistrial added thirteen more months, another round of
preparation, and a second trial after which he was ultimately acquitted of
murder and attempted murder and convicted only of much less serious charges.
The State, by contrast, received what double jeopardy rarely allows: another
opportunity to convict.
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 24 of 26 [52] So although the mistrial occurred early in the trial, that timing cuts both for and
against Kelley. The early mistrial may have reduced the waste of completed
trial proceedings, but it also made an admonishment more likely to work. No
witness had testified. No evidence had been admitted. No narrative had taken
hold. And the jury had just been told that it could not consider counsel’s
statements as evidence.
IV. Curable Error Is Not Manifest Necessity
[53] Kelley argued that the preliminary instruction that counsel’s statements are not
evidence minimized any harm from counsel’s remarks. The majority answers
that this argument “would apply in every case where improper statements are
made by counsel, making a mistrial never truly necessary.” Maj. op., ¶25. The
majority has it backwards.
[54] Kelley does not argue that the preliminary instruction, standing alone, made
mistrial unavailable. His point is more practical. Having just been told that
opening statements were not evidence, the jury was already prepared to
understand and follow an admonishment directing it to disregard counsel’s
improper comments. If jurors truly cannot set aside two sentences of an
opening statement after being told that openings are not evidence, how can we
trust them to disregard stricken testimony, ignore withdrawn questions, or
consider evidence for one purpose but not another? The majority never explains
why the presumption that jurors follow instructions and admonishments fails
here, in the easiest imaginable case for its application.
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 25 of 26 [55] Kelley was 20 years old when this crime occurred. By sentencing, he had spent
1,752 actual days in custody. When his first jury was finally sworn, he asked for
nothing extraordinary, only that the court admonish the jury and proceed. The
trial court refused. Kelley then waited thirteen more months under the weight
of unresolved murder and attempted murder charges before a second jury
acquitted him of both and found him guilty of a much lesser charge. During
that time, the murder and attempted murder charges were not abstractions.
They carried the possibility of decades in prison, demanded renewed
preparation, and prolonged the stigma and anxiety spurred by such serious
charges.
[56] The Fifth Amendment, Article 1, Section 14 of the Indiana Constitution, and
Indiana’s successive prosecution statute (Indiana Code § 35-41-4-3) promised
Kelley that his first jury would not be discharged absent manifest necessity. See
Washington, 434 U.S. at 505; Tyson, 543 N.E.2d at 418-19. The trial court had a
straightforward tool available—an admonishment—and never used it. Instead,
it discharged a sworn jury over Kelley’s objection because counsel made two
improper comments about one of several witnesses to the crime. These
statements were made to jurors who had just been told that opening statements
are not evidence. A mistrial was not manifestly necessary.
[57] I would reverse and remand with instructions to vacate Kelley’s convictions
and discharge him.
Court of Appeals of Indiana Opinion 25A-CR-1454 June 23, 2026 Page 26 of 26